Court filing
OBJECTION to Jury Instructions (Proposed) 372 , filed by Plaintiff USA as to… — USA v. Ayvazyan et al (Dkt. 557)
Filed June 22, 2021 in USA v. Ayvazyan et al; one of 233 filings from this case.
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-06-22 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 557 · 2021-06-22 · Docket on CourtListener
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TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
SCOTT PAETTY (Cal. Bar No. 274719)
CATHERINE AHN (Cal. Bar No. 248286)
BRIAN FAERSTEIN (Cal. Bar No. 274850)
Assistant United States Attorneys
Major Frauds/Environmental and Community Safety Crimes Sections
1100/1300 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-6527/2424/3819
Facsimile: (213) 894-6269/0141
E-mail:
Scott.Paetty@usdoj.gov
Catherine.S.Ahn@usdoj.gov
Brian.Faerstein@usdoj.gov
JOSEPH BEEMSTERBOER
Acting Chief, Fraud Section
Criminal Division, U.S. Department of Justice
CHRISTOPHER FENTON
Trial Attorney, Fraud Section
Criminal Division, U.S. Department of Justice
1400 New York Avenue NW, 3rd Floor
Washington, DC 20530
Telephone: (202) 320-0539
Facsimile: (202) 514-0152
E-mail:
Christopher.Fenton@usdoj.gov
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD AYVAZYAN,
aka “Richard Avazian” and
“Iuliia Zhadko,”
MARIETTA TERABELIAN,
aka “Marietta Abelian” and
“Viktoria Kauichko,”
ARTUR AYVAZYAN,
aka “Arthur Ayvazyan,” and
TAMARA DADYAN,
MANUK GRIGORYAN,
aka “Mike Grigoryan,” and
No. CR 20-579(A)-SVW
GOVERNMENT’S OBJECTIONS TO
DEFENDANTS’ PROPOSED JURY
INSTRUCTIONS (ECF 372)
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“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
Defendants.
Plaintiff United States of America, by and through its counsel
of record, the Acting United States Attorney for the Central
District of California, Assistant United States Attorneys Scott
Paetty, Catherine Ahn, and Brian Faerstein, and Department of
Justice Trial Attorney Christopher Fenton, hereby files its
objections to defendants’ Richard Ayvazyan’s, Marietta Terabelian’s,
Artur Ayvazyan’s, and Vahe Dadyan’s proposed jury instructions (ECF
372).
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The government has separately filed the Governments’ Revised
Proposed Jury Instructions (ECF 556) to, among other things, conform
to defendants currently in trial, and propose and remove
instructions in accordance with the proceedings at trial. The
government respectfully requests leave to make modifications to
these instructions, to submit such other and additional instructions
as may become appropriate, and/or to withdraw any instructions that
prove inapplicable.
Dated: June 22, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/
SCOTT PAETTY
CATHERINE AHN
BRIAN FAERSTEIN
Assistant United States Attorneys
CHRISTOPHER FENTON
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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TABLE OF CONTENTS
TABLE OF CONTENTS............................................. i
TABLE OF AUTHORITIES.......................................... i
MEMORANDUM OF POINTS AND AUTHORITIES.......................... 1
I.
INTRODUCTION............................................. 1
II.
OBJECTIONS TO DEFENDANTS’ JOINTLY PROPOSED JURY
INSTRUCTIONS............................................. 1
A.
Objection to Defendants’ Joint Proposed Instruction
No. 1 (Conspiracy to Commit Wire Fraud and Bank Fraud
– Elements)......................................... 1
B.
Objection to Defendants’ Joint Proposed Instruction
No. 2 (Count 1 – Multiple Conspiracies – Defense)... 4
C.
Objection to Defendants’ Joint Proposed Instruction
No. 3 (Conspiracy – Willfulness Defined)............ 5
D.
Objection to Defendants’ Joint Proposed Instruction
No. 4 (Wire Fraud).................................. 6
E.
Objection to Defendants’ Joint Proposed Instruction
No. 5 (Bank Fraud).................................. 8
F.
Objection to Defendants’ Joint Proposed Instruction
No. 6 (Fraud – Good Faith – Defense)................ 9
G.
Objection to Defendants’ Joint Proposed Instruction
No. 7 (Fraud – Multiple Schemes – Defense)......... 10
H.
Objection to Defendants’ Joint Proposed Instruction
No. 8 (Conspiracy to Commit Concealment and
Transactional Money Laundering – Elements)......... 12
I.
Objection to Defendants’ Joint Proposed Instruction
No. 9 (Count 26 – Multiple Conspiracies – Defense). 15
J.
Objection to Defendants’ Joint Proposed Instruction
No. 10 (Concealment Money Laundering – Elements)... 15
K.
Objection to Defendants’ Joint Proposed Instruction
Nos. 11, 12, and 14 (Aggravated Identity Theft).... 16
L.
Objection to Defendants’ Joint Proposed Instruction
No. 15 (Presumption of Innocence – Reasonable Doubt –
Burden)............................................ 16
M.
Objection to Defendants’ Joint Proposed Instruction
No. 16 (Defendant Not Required to Testify)......... 17
N.
Objection to Defendants’ Joint Proposed Instruction
No. 17 (Mere Presence)............................. 17
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O.
Objection to Defendants’ Joint Proposed Instruction
Nos. 21-22 (Separate Charges; Separate Counts)..... 17
III. CONCLUSION.............................................. 18
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TABLE OF AUTHORITIES
CASES
Bryan v. United States, 524 U.S. 184 (1998)........................ 5
Ratzlaf v. United States, 510 U.S. 135 (1994)...................... 5
United States v. Hickey, 580 F.3d 922 (9th Cir. 2009)............. 10
United States v. Kim, 65 F.3d 123 (9th Cir. 1995).................. 6
United States v. Lapier, 796 F.3d 1090 (9th Cir. 2015)............. 5
United States v. Larsen, 810 F. App'x 508 (9th Cir. 2020).......... 6
United States v. Perry, 550 F.2d 574 (9th Cir. 1977)............... 5
United States v. Rodgers, 624 F.2d 1303 (5th Cir. 1980)........... 11
United States v. Shipsey, 363 F.3d 962 (9th Cir. 2004)............ 10
United States v. Thomas, 586 F.2d 123 (9th Cir. 1978)............. 11
United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011)............ 17
STATUTES
18 U.S.C. § 1343................................................... 6
18 U.S.C. § 1344(2)................................................ 8
18 U.S.C. § 1349................................................... 1
18 U.S.C. § 1956(a)(1)(B)(i)...................................... 15
18 U.S.C. § 1956(h)............................................... 12
18 U.S.C. § 1957.................................................. 13
OTHER AUTHORITIES
Ninth Circuit Model Jury Instruction No. 3.12..................... 17
Ninth Circuit Model Jury Instruction No. 3.13..................... 17
Ninth Circuit Model Jury Instruction No. 5.5....................... 5
Ninth Circuit Model Jury Instruction No. 6.10..................... 17
Ninth Circuit Model Jury Instruction No. 8.20................. passim
Ninth Circuit Model Jury Instruction No. 8.21.................. 9, 10
Ninth Circuit Model Jury Instruction No. 8.22...................... 5
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Ninth Circuit Model Jury Instruction No. 8.23...................... 5
Ninth Circuit Model Jury Instruction No. 8.124.................. 2, 6
Ninth Circuit Model Jury Instruction No. 8.127.................. 3, 8
Ninth Circuit Model Jury Instruction No. 8.147................ 13, 15
Ninth Circuit Model Jury Instruction No. 8.150.................... 13
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government respectfully submits these objections to
defendants Richard Ayvazyan’s, Marietta Terabelian’s, Artur
Ayvazyan’s, and Vahe Dadyan’s (“defendants”) proposed jury
instructions (ECF 372). In sum, defendants’ proposed jury
instructions materially deviate from the Ninth Circuit Model
Criminal Jury Instructions, misstate the law, inject unnecessary
confusion, and assume foundational evidence that has not been laid.
The government addresses defendants’ proposed instructions to which
it objects in turn below, and respectfully requests that the Court
submit the government’s revised proposed jury instructions to the
jury instead (ECF 556).
II.
OBJECTIONS TO DEFENDANTS’ JOINTLY PROPOSED JURY INSTRUCTIONS
A.
Objection to Defendants’ Joint Proposed Instruction No. 1
(Conspiracy to Commit Wire Fraud and Bank Fraud –
Elements)
The government objects to the form and content of defendants’
proposed substantive instruction for the offense alleged in Count
One, that is, conspiracy to commit bank fraud and wire fraud in
violation of 18 U.S.C. § 1349.
First, for the second element of the conspiracy charge, the
proposed instruction states, “Second, the defendant became a member
of the conspiracy knowing of every element of at least one of its
objects . . . .” (ECF 372 at 5 (emphasis added).) Ninth Circuit
Model Jury Instruction (“MJI”) No. 8.20, which defendants assert
they followed in constructing this proposed instruction, does not
include the underlined language reflected above. The language is
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confusing and misstates the law, as set forth in detail in the
Commentary to MJI No. 8.20.
Second, defendants include awkward, reformulated versions of
the substantive instructions for wire fraud and bank fraud within
the instruction for the conspiracy charged in Count One. (ECF 372
at 6-7.) Defendants have modified the language for the elements of
wire fraud and bank fraud found in the MJI, changing the elements
from the past tense to the future tense. (Compare, e.g. MJI No.
8.124 (“the statements made . . . as part of the scheme were
material”) with ECF 372 at 6 (“the statements to be made as part of
the scheme would be material”). However, defendants later provide
separate proposed substantive instructions for wire fraud and bank
fraud that hue closer to the MJI (but still raise concerns as
addressed further below).1 The existence of these conflicting
recitations of the elements of wire fraud and bank fraud will likely
cause unnecessary confusion among the jurors.
Moreover, as discussed further below in the government’s
objection to defendants’ proposed bank fraud instruction, defendants
make significant and material changes to the elements of the
reformulated bank fraud description within the proposed conspiracy
instruction. Among other things, defendants insert a mens rea
requirement that defendants “knew that the statements or promises
1 Defendants also erroneously omit certain language from their
incorporation of the wire fraud elements in the conspiracy
instruction, including , “Deceitful statements of half-truths may
constitute false or fraudulent representations,” and “In determining
whether a scheme to defraud exists, you may consider not only the
defendant’s words and statements, but also the circumstances in
which they are used as a whole.” MJI No. 8.124. Defendants make
the same mistaken omissions in their standalone proposed instruction
for wire fraud, which the government discusses further below.
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were or would be material” and that “the defendant knew that the
Lender to be defrauded was federally insured.” (ECF 372 at 7.)
There is no knowledge requirement with respect to these elements,
and defendants’ reformulation of the bank fraud elements inject
additional evidentiary burdens unfounded in the law. See MJI No.
8.127. Similarly, defendants erroneously insert the phrase,
“knowing of that object, and intending to help accomplish it,” at
the end of the first reformulated element for bank fraud within the
proposed conspiracy instruction. (ECF 372 at 7.) This is not in
fact a requirement of the first element of bank fraud, and
defendants muddy the waters by apparently trying to inject
conspiracy principles into the substantive elements of an object of
the conspiracy.
Thus, the inclusion of the modified future tense versions of
instructions for wire fraud and bank fraud within the conspiracy
instruction is confusing, unnecessary, and in many cases misstates
the law. Instead, as set forth in the government’s amended proposed
instructions (see ECF 556 at 26), the government proposes a
standalone instruction for conspiracy to commit bank fraud and wire
fraud, with an express cross-reference to the separate instructions
for bank fraud and wire fraud which follow immediately thereafter
and closely adhere to the elements set forth for those offenses in
the MJI. This way, the jurors can refer to the correct instructions
for bank fraud and wire fraud when evaluating the alleged objects of
the conspiracy in Count One. And they will not be confused by
conflicting language for the elements of these offenses (including
some in the future tense and others in the past tense) and
misstatements of the elements when considering the section 1349
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conspiracy count and the standalone section 1343 wire fraud counts
and section 1344(2) bank fraud counts.
Finally, defendants include a separate section for “Unanimity
Requirements” that is not drawn from the language of the model
instruction for the elements of conspiracy while omitting express
language from that instruction that addresses unanimity concerns.
Specifically, defendants omit the language, “You must find that
there was a plan to commit at least one of the crimes alleged in the
indictment as an object of the conspiracy with all of you agreeing
as to the particular crime which the conspirators agreed to commit.”
MJI No. 8.20. The government includes this language in its proposed
instruction for the general principles of conspiracy described in
MJI No. 8.20 (see ECF 556 at 19), and this language provides
sufficient guidance to the jurors that they must agree unanimously
as to one or both of the objects of the conspiracy. The government
also separates the two separate objects of the conspiracy in its
proposed verdict form, further ensuring the jury will reach
unanimity on one or both of the objects of the alleged conspiracy.
(See ECF 552-1.) Defendants’ substitution of the “Unanimity
Requirements” while omitting the above-described language provided
in the model instruction is unnecessary and confusing.
B.
Objection to Defendants’ Joint Proposed Instruction No. 2
(Count 1 – Multiple Conspiracies – Defense)
The government incorporates by reference the government’s
objections to defendant Richard Ayvazyan’s proposed use of the term
“single or unitary” in his proposed verdict form. (ECF 552 at 5-
10.) Defendant is not entitled to a multiple conspiracies
instruction unless there is a “genuine possibility of confusion”
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about the existence of multiple conspiracies, which is not present
in the instant case. United States v. Perry, 550 F.2d 574, 532-33
(9th Cir. 1977), see also United States v. Lapier, 796 F.3d 1090,
1096-97 (9th Cir. 2015) and MJI Nos. 8.22 and 8.23.
C.
Objection to Defendants’ Joint Proposed Instruction No. 3
(Conspiracy – Willfulness Defined)
The government objects to the use of defendants’ proposed
willfulness instruction because it does not apply to the offenses
charged in this case. The case cited by defendants, United States
v. Pomponio, 429 U.S. 10, 12 (1976), relates to willfully filing
false income tax returns in violation of 26 U.S.C. § 7206(1), which
is not charged in this case. In Bryan v. United States, 524 U.S.
184, 193-194 (1998), the Supreme Court held that – for willful
violations of the tax laws – “the jury must find that the defendant
was aware of the specific provision of the tax code that he was
charged with violating.” Id. The Supreme Court was careful to
distinguish the “highly technical” criminal tax statutes in
“carv[ing] out an exception to the traditional rule that ignorance
of the law is no excuse and require that defendant have knowledge of
the law.” Id. at 194-94 (internal quotations and citations
omitted).
As noted in the Ninth Circuit’s Model Jury Instruction No. 5.5
for “Willfully,” “willful is a word of many meanings and its
construction is often . . . influenced by its context.” MJI No. 5.5
(citing Ratzlaf v. United States, 510 U.S. 135, 141 (1994) (internal
quotations omitted)). Although the term “willfully” is referenced
in the Ninth Circuit’s Model Jury Instructions for Conspiracy (MJI
No. 8.20), as discussed in United States v. Kim, 65 F.3d 123, 126
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(9th Cir. 1995), “the use of “willfully” in the conspiracy
instruction refers to the joining in the agreement, not the mens rea
of the substantive offense.” See also United States v. Larsen, 810
F. App'x 508, 509–10 (9th Cir. 2020), cert. denied, 141 S. Ct. 1695
(2021) (“the district court’s instructions for bank fraud were
consistent with the language of the statute, which specifies a
knowing, not a willful, intent requirement”) (citing numerous
cases).
D.
Objection to Defendants’ Joint Proposed Instruction No. 4
(Wire Fraud)
The government objects to the content and form of defendants’
proposed substantive instruction for the offenses alleged in Counts
Two through Twelve, that is, wire fraud in violation of 18 U.S.C.
§ 1343.
First, defendants omit certain necessary and appropriate
language from the Ninth Circuit Model Criminal Jury Instruction for
wire fraud. MJI No. 8.124. Specifically, defendants omit the
optional language in element number one that “Deceitful statements
of half-truths may constitute false or fraudulent representations.”
MJI No. 8.124. The government expects that one or more defendants
may argue in closing that representations they made in COVID-19
disaster relief loan applications reflected both accurate and false
information, or that synthetic identities consisted of both real and
fictitious information. The jury should thus be instructed that
such half-truths (though the government takes the position that such
“half-truths” are in fact completely false) may constitute false or
fraudulent representations for purposes of the wire fraud charges.
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In addition, defendants omit the standard language in the model
instruction that directly follows the last element of the offense.
The language they omit states, “In determining whether a scheme to
defraud exists, you may consider not only the defendant’s words and
statements, but also the circumstances in which they are used as a
whole.” MJI No. 8.124. The jury should be instructed on this basic
tenet of interpreting the evidence and the import of circumstantial
evidence in determining whether a scheme to defraud existed.2
Second, it appears defendants copied and pasted the modified
language they included for the wire fraud elements (including their
conversion of the elements to the future tense) in their proposed
substantive conspiracy instruction for Count One, as described
above, into their proposed standalone substantive wire fraud
instruction. As a result, much of the proposed language for the
wire fraud elements in this proposed instruction remains in the
future tense – and materially deviates from the model language in
MJI No. 8.124. (See, e.g., ECF 372 at 11 (“statements to be made as
part of the scheme would be material;” defendant “knew and intended
that action be taken;” defendant “knew and intended that an
interstate wire communication . . .”) (emphasis added). Defendants
also erroneously include language in the wire fraud elements that
appears to be holdover language from the conspiracy instruction.
For instance, defendants include the phrase, “knowing of that object
and intending to help accomplish it” at the end of the first element
for wire fraud, which language pertains specifically to a conspiracy
2 Defendants also substitute, without any explanation as to why,
the phrase “as charged in the applicable wire fraud count” for the
phrase “in furtherance of the scheme” in the last sentence of the
model instruction. (Compare ECF 372 at 12 with MJI No. 8.124.)
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charge and does not appear in the Ninth Circuit Model Jury
Instruction for wire fraud. See MJI No. 8.124. In short,
defendant’s proposed wire fraud instruction is substantively and
structurally flawed throughout and unnecessarily deviates from the
Ninth Circuit’s model instructions.
By contrast, the government’s proposed substantive instruction
for the wire fraud counts closely adheres to the Ninth Circuit’s
model instruction. (See ECF 556 at 27-29.) The Court should reject
defendants’ proposed wire fraud instruction and provide the
government’s instead.
E.
Objection to Defendants’ Joint Proposed Instruction No. 5
(Bank Fraud)
Defendants’ proposed substantive bank fraud instruction suffers
from similar flaws as their proposed wire fraud instruction
described above, including their making significant and material
changes to the Ninth Circuit’s model instruction for bank fraud in
violation of 18 U.S.C. § 1344(2).
First, defendants incorrectly insert a mens rea requirement as
to both the materiality of the subject statements or promises and as
to the federally-insured status of the relevant financial
institution. Specifically, defendants’ instruction states that “the
defendant knew that the statements or promises were material,” and
“the defendant knew that the financial institution” was insured.
(ECF 372 at 13 (emphasis added).) The underlined language is not in
the model instruction nor is it supported by law. See MJI No.
8.127. Defendants’ proposed instruction effectively seeks to create
additional state of mind elements that do not exist.
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Second, the proposed bank fraud instruction also contains
holdover language from its unnecessary inclusion in the body of the
proposed conspiracy instruction for Count One. For instance, the
first element in defendants’ proposed bank fraud instruction states
that “defendant joined a scheme or plan,” whereas the model
instruction correctly states that “defendant knowingly carried out a
scheme or plan.” (Compare ECF 372 at 13 with MJI No. 8.127.) The
same element in defendants’ proposed instruction also includes the
unnecessary and inapplicable phrase at the end, “knowing of that
object and intending to help accomplish it.” (ECF 372 at 13.)
In stark contrast, the government’s proposed bank fraud
instruction closely follows the Ninth Circuit model instruction, and
the Court should provide the government’s proposed instruction and
reject defendants’ significantly flawed proposed instruction.
F.
Objection to Defendants’ Joint Proposed Instruction No. 6
(Fraud – Good Faith – Defense)
The government objects to defendants’ inclusion of a good faith
defense instruction because neither the evidence nor defendants’
apparent theories of defense support it. MJI No. 8.21, upon which
defendants’ solely rely for this proposed instruction, includes
optional language regarding an “honest and good faith
misunderstanding” but only “[i]f the evidence supports an argument
the defendant did not act with the requisite intent to defraud
because of a good faith misunderstanding about the requirements of
the law.” MJI No. 8.21. Defendants thus far have not proffered any
credible evidence that they sought to submit legitimate applications
but had a “good faith misunderstanding about the requirements of the
law.” Rather, each defendant has sought to point the finger at
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other codefendants, including those that already have pleaded guilty
(defendants Tamara Dadyan and Manuk Grigoryan). The evidence
adduced thus far does not support a plausible argument that
defendants were operating under a good faith, mistaken understanding
of the law, and thus there is no factual basis for this instruction.
Moreover, the government’s proposed substantive instructions,
which largely follow the Ninth Circuit Model Jury Instructions with
modifications specific to this case, adequately instruct the jury as
to the intent finding required for each offense. In denying a
defendant’s request for a “separate ‘good faith’ instruction, in
addition to the district court’s other instructions on specific
intent,” the Ninth Circuit explained that this request was
“foreclosed by Ninth Circuit precedent: ‘[o]ur case law is well
settled that a criminal defendant has no right to any good faith
instruction when the jury has been adequately instructed with regard
to the intent required to be found guilty of the crime charged....’”
United States v. Hickey, 580 F.3d 922, 931 (9th Cir. 2009) (quoting
United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004)).3
G.
Objection to Defendants’ Joint Proposed Instruction No. 7
(Fraud – Multiple Schemes – Defense)
The government objects to defendants’ unfounded request for a
so-called “multiple schemes” instruction for several reasons.
3 The government also objects to this proposed instruction as a
standalone instruction, as MJI No. 8.21 contemplates that the
optional “good faith” language be used to “modify” a specific
paragraph within the substantive instruction for a conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371. MJI No.
8.21. In any event, the language within MJI No. 8.20, not MJI No.
8.21, should guide the Court’s instructions to the jury under the
charges of this case, and the evidence and theories of defense do
not support the “good faith” instruction in any form.
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First, as the government explained in its objections to
defendant Richard Ayvazyan’s proposed verdict form (ECF 552 at 5-
10), and reiterates herein in connection with its objections to
defendants’ requests for “multiple conspiracies” instructions on
both Counts One and Twenty-Six, neither the facts of this case nor
the law support defendants’ argument that a “multiple conspiracies”
instruction is warranted here.
Second, none of the four cases defendants cite (including two
out-of-circuit cases or otherwise significantly dated authority) in
the “Supporting Authorities” for their “multiple schemes”
instruction support this proposed instruction. The lead case they
cite, United States v. Thomas, 586 F.2d 123 (9th Cir. 1978),
actually pertained to a drug distribution conspiracy charge, not a
mail or wire fraud scheme, and thus no “multiple schemes”
instruction was given. Id. at 131-32. While the second case they
cite, United States v. Rodgers, 624 F.2d 1303 (5th Cir. 1980), did
involve a mail fraud charge, the court there also did not provide a
“multiple schemes” instruction even where the alleged scheme to
defraud was alleged to have lasted for fourteen years. Id. at 1307.
Neither of the courts in the two other cases upon which defendants
rely provided “multiple schemes” instructions and are inapposite to
the issue here.
Third, defendants’ proposed instruction also inaccurately
claims that “Counts 2 through 20 of the indictment alleged a single,
unitary, scheme to commit wire and bank fraud.” (ECF 372 at 15.)
Defendants’ attempt to combine the wire fraud and bank fraud schemes
alleged separately in the First Superseding Indictment is a
transparent attempt to shoehorn one of their (incorrect) theories of
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defense into the jury instructions. Defendant Richard Ayvazyan also
used the “single, unitary” language in his proposed verdict form, to
which the government objected on multiple grounds, including the
inappropriate and misleading use of these terms as presented to the
jury. (See ECF 547, 552.) Defendants’ attempt to conflate the two
separately charged and distinct wire fraud and bank fraud schemes
also is belied by the face of the indictment.
In short, defendants can point to nothing in the Ninth
Circuit’s model instructions nor any other case in any circuit in
which a “multiple schemes” instruction has been given, and the Court
should not do so here.
H.
Objection to Defendants’ Joint Proposed Instruction No. 8
(Conspiracy to Commit Concealment and Transactional Money
Laundering – Elements)
The government objects to defendants’ proposed substantive
instruction for the money laundering conspiracy charge, in violation
of 18 U.S.C. § 1956(h), in Count 26 on predominantly the same
grounds as its objections to defendants’ proposed conspiracy charge
in Count One. (See supra Objection to Defendants’ Joint Proposed
Instruction No. 1.)
In brief, defendants inject unnecessary confusion by including
the substantive instructions for the two objects of the conspiracy
within the conspiracy instruction itself. The government proposes a
standalone instruction for money laundering conspiracy, with an
express cross-reference to the separate instructions for concealment
money laundering and transactional money laundering which follow
immediately thereafter and closely adhere to the elements set forth
for those offenses in the MJI. (See ECF 556 at 34-38.)
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Defendants also omit important language or elements from their
incomplete recitations of the elements of each of the objects of the
conspiracy within this proposed instruction. For concealment money
laundering, defendants omit the statement from the Ninth Circuit
model instruction that, “[t]he phrase ‘knew that the property
represented the proceeds of some form of unlawful activity’ means
that the defendant knew that the property involved in the
transaction represented proceeds from some form, though not
necessarily which form, of activity that constitutes a felony. I
instruct you that [specify relevant unlawful activity] is a felony.”
MJI No. 8.147. Tellingly, defendants also improperly substitute the
phrase “the proceeds of unlawful activity that is charged in the
indictment” for the phrase “proceeds of some form of unlawful
activity.” (Compare ECF 372 at 17 with MJI No. 8.147.) The net
effect of defendants’ omission and substitution of language is to
erroneously require the government to prove defendants knew that
illegal proceeds came from a specific activity charged in the
indictment when no such specific requirement of proof is necessary.
With respect to their description of the elements of
transactional money laundering, in violation of 18 U.S.C. § 1957, in
the proposed conspiracy instruction, defendants similarly substitute
the phrase “the proceeds of unlawful activity that is charged in the
indictment” for the phrase “involved criminally derived property.”
(Compare ECF 372 at 17 with MJI No. 8.150.) Defendants also omit a
qualifier in MJI No. 8.150 that explains that “[t]he government does
not have to prove that the defendant knew the precise nature of that
criminal offense, or knew the property involved in the transaction
represented the proceeds of [specified unlawful activity as alleged
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in the indictment].” (MJI No. 8.150.) Thus, once again, defendants
materially change the elements of this money laundering offense,
erroneously imposing the requirement of proving knowledge of the
specific underlying offense. As with other substantive instructions
described herein, defendants effectively attempt to make material
and legally flawed changes to the Ninth Circuit’s model
instructions.4
In addition, similar to defendants’ proposed instruction for
the conspiracy charged in Count One, the second element of the
conspiracy charge in their proposed money laundering conspiracy
instruction states, “Second, the defendant became a member of the
conspiracy knowing of every element of at least one of its objects .
. . .” (ECF 372 at 16 (emphasis added).) MJI No. 8.20 does not
include the underlined language reflected above. The language is
confusing and misstates the law, as set forth in detail in the
Commentary to MJI No. 8.20.
Finally, defendants include a “Unanimity Requirements” section
in this conspiracy instruction (as they did with the conspiracy
instruction for Count One) that is duplicative and unnecessary. In
this instruction, defendants actually do include the appropriate
language for the requirement that the jury “must find that there was
a plan to commit at least one of the crimes alleged in the
indictment as an object of the conspiracy with all of you agreeing
as to the particular crime which the conspirators agreed to commit.”
(ECF 372 at 18.) This language, along with the government’s
4 Defendants also omit the fifth element for transactional money
laundering from their proposed instruction, in particular, that “the
transaction occurred in the United States.” (Compare ECF 372 at 17
with MJI No. 8.150.)
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proposed verdict form which includes separate questions for the jury
to answer regarding each of the alleged objects of the money
laundering conspiracy, will be sufficient to ensure the jury
appropriately understands the requirement for unanimity in their
verdicts.
I.
Objection to Defendants’ Joint Proposed Instruction No. 9
(Count 26 – Multiple Conspiracies – Defense)
The government incorporates by reference the objections
discussed above to Defendants’ Joint Proposed Instruction No. 2.
J.
Objection to Defendants’ Joint Proposed Instruction No. 10
(Concealment Money Laundering – Elements)
Similar to defendants’ misstatement of the elements of
concealment money laundering in the proposed money laundering
conspiracy count described above, defendants once again materially
change the second element of concealment money laundering, in
violation of 18 U.S.C. § 1956(a)(1)(B)(i), as proposed in this
instruction. Specifically, defendants improperly substitute the
phrase “the proceeds of unlawful activity that is charged in the
indictment” for the phrase “proceeds of some form of unlawful
activity.” (Compare ECF 372 at 21 with MJI No. 8.147.) Defendants
additionally omit the language, “[t]he phrase ‘knew that the
property represented the proceeds of some form of unlawful activity’
means that the defendant knew that the property involved in the
transaction represented proceeds from some form, though not
necessarily which form, of activity that constitutes a felony. I
instruct you that [specify relevant unlawful activity] is a felony.”
MJI No. 8.147. The combination of these revisions and omissions is
improper and misstates the law, as explained above.
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The government also objects to the unnecessary inclusion of the
optional fourth element and corresponding language regarding
“substantial step” and “mere preparation,” which is not appropriate
given the government is not proceeding on an attempt theory of money
laundering in this case.
K.
Objection to Defendants’ Joint Proposed Instruction Nos.
11, 12, and 14 (Aggravated Identity Theft)
Defendants’ Joint Proposed Instructions 11, 12, and 145 do not
appear to correctly track the statutory language or the charges in
the instant case. For example, defendant proposes the Court
instruct that “Second, Richard Ayvazyan knew that M.Z. was a real
person. . .” This incorrectly states the charges. Defendant
Richard Ayvazyan is charged with knowing that “a means of
identification . . . belonged to another person, namely, the name of
M.Z.” (ECF 154, Count Twenty-One.) As such, the government
respectfully requests that the Court use the Governments’ Revised
Proposed Jury Instructions.
L.
Objection to Defendants’ Joint Proposed Instruction No. 15
(Presumption of Innocence – Reasonable Doubt – Burden)
The government respectfully requests that this Court use the
Ninth Circuit Model Jury Instruction, as proposed in the
Governments’ Revised Proposed Jury Instructions.
5 The government does not address Defendants’ Joint Proposed
Instruction No. 13 because it refers to charges relating to
defendant Manuk Grigoryan that are not before this jury and should
be removed. Similarly, the portion of Defendants’ Joint Proposed
Instruction No. 14 referring to defendant Tamara Dadyan should be
removed.
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M.
Objection to Defendants’ Joint Proposed Instruction No. 16
(Defendant Not Required to Testify)
The government respectfully requests that this Court use the
Ninth Circuit Model Jury Instruction, as proposed in the
Governments’ Revised Proposed Jury Instructions.
N.
Objection to Defendants’ Joint Proposed Instruction No. 17
(Mere Presence)
As articulated in the comments to the Ninth Circuit’s Model
Jury Instruction, “a mere presence instruction is unnecessary if the
government’s case is not solely based on defendant’s presence and
the jury has been instructed on the elements of the crime.” MJI No.
6.10 (citing United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir.
2011)). Given the evidence of actual possession of business and
personal identifiers and the actual receipt and transfer of loan
proceeds explicitly identified in the First Superseding Indictment,
such an instruction is not warranted by the evidence presented at
trial.
O.
Objection to Defendants’ Joint Proposed Instruction Nos.
21-22 (Separate Charges; Separate Counts)
Defendants’ Joint Proposed Instruction 21 alters the initial
sentence of Ninth Circuit Model Jury Instruction No. 3.12; the
government respectfully requests that this Court use the Ninth
Circuit Model Jury Instruction, as proposed in the Governments’
Revised Proposed Jury Instructions. Similarly, Defendants’ Joint
Proposed Instruction No. 22 omits the final sentence of Ninth
Circuit Model Jury Instruction No. 3.13, without a reason for the
omission; the government respectfully requests that this Court use
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the Ninth Circuit Model Jury Instruction, as proposed in the
Governments’ Revised Proposed Jury Instructions.
III. CONCLUSION
For the reasons articulated above, the government respectfully
requests the Court decline to adopt the Defendants’ Joint Proposed
Instructions identified above and, where applicable, adopt the
Governments’ Revised Proposed Jury Instructions.
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